Opinion
No. CV08 5020525
September 24, 2009
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS #108 109
The defendants Marilou Frank and Feliz Rellosa have each filed a motion to dismiss claiming that the court lacks subject matter jurisdiction. These defendants claim that the record will reveal that the action was made returnable more than two months after the original date of process of the writ, summons and complaint in violation of General Statutes § 52-48(b), which requires that the return date for an action cannot be more than two months after the date of process.
The named plaintiffs in the action are the New England Fertility Institute, LLC, Lifeline Cryogenics, LLC and Gad Levy, M.D. The named defendants are Marilou Frank, Feliz Rellosa, Constancia Nunez, Josephine Gruenberg, Manette Pardo, Manette Pardo d/b/a Complete Corporate Solutions, LLC and Corporate Solutions, LLC.
Sec. 52-48. Return day of process.
(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.
(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.
The plaintiffs commenced this action by way of a writ, summons and complaint dated November 4, 2008, bearing a return date of December 16, 2008. The process was returned to court on December 5, 2008. All named defendants were served by the state marshal with the exception of the defendant Feliz Rellosa, who the marshal was unable to locate. Thereafter the plaintiffs filed a pleading titled "Motion to Amend Return Date in the Process for Defendant Feliz Rellosa," dated January 26, 2009. The motion states that its purpose was to comply with "`§ 46a' and `§ 46b' of the Connecticut General Statutes." The plaintiffs recite that the marshal was unable to serve Rellosa at what they believed was her home address. Using a private investigator, hired in January 2009, the plaintiffs successfully located Rellosa's home address. The plaintiffs sought to amend the return date because they could not comply with the original return date of December 16, 2008. In effect, the plaintiffs could not comply with General Statutes § 52-46 requiring that Rellosa be served at least twelve days before the stated return date. Additionally, the plaintiffs could not comply with § 52-46a, which requires that the return of service of process be returned to the court at least six days before the return date. The plaintiffs further state in their motion to amend that General Statutes § 52-72 permits the court to allow an amendment to civil process made returnable to the wrong return date or is for any other reason defective. The plaintiffs requested that the court grant the motion setting the return date for Rellosa at March 31, 2009 and permit the plaintiffs to properly serve Rellosa to obtain personal jurisdiction over her. Following the filing of the motion to amend, none of the various defendants filed any objection to the motion to amend. Thereafter, the plaintiffs served a writ, summons and complaint on Rellosa, using the amended return date of March 31, 2009. The state marshal's service indicates that Rellosa was served on February 21, 2009, and process was returned to the court on March 4, 2009.
Sec. 52-46a. Return of process.
Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.
Sec. 52-72. Amendment of process.
(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.
(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process.
The defendant Rellosa filed a motion to dismiss (#117) claiming that the action violated General Statutes § 52-48(b) as the action was returnable more than two months after the original date of process of the writ, summons and complaint. Rellosa argues the court lacks subject matter jurisdiction.
The defendant Frank has also filed a motion to dismiss (#108), arguing the same grounds as Rellosa, despite the fact that Frank was timely served with the original writ, summons and complaint dated November 4, 2008, bearing a return date of December 16, 2008. Frank argues that this matter can have only one return date, and therefore by amending the return date to March 31, 2009 for service on Rellosa, the plaintiffs have, in fact, amended the return date for all defendants and abandoned the original return date. Thus, the new return date of March 31, 2009 is more than two months after the return of process, which was November 4, 2008. Frank argues that "all process" has not been made returnable not later than two months after the original "date of process" as required by § 52-48(b), and the court lacks subject matter jurisdiction over this action.
The court heard oral argument on the motions on June 1, 2009. Because of the similarities regarding the claims of lack of subject matter jurisdiction contained in the respective motions filed by Rellosa and Frank, the court will determine their merits in one memorandum of decision, which shall be applicable to each of the motions to dismiss.
I Standard of Law
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.' (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Daimler Chrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper avenue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book 10-31. "Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989).
"The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). See Practice Book § 10-33. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "When . . . a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).
"One who is not served with process does not have the status of a party to the proceeding. A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003). "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 109, 897 A.2d 58 (2006).
Practice Book §§ 10-30 and 10-32 "specifically and unambiguously [provide] that any claim of lack of jurisdiction over the person . . . is waived unless it is raised by a motion to dismiss filed within thirty days [of the date that the defendant filed its appearance, and] in the sequence required by Practice Book § 10-6 [which states the order in which pleadings must be filed] . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
II Frank's Motion to Dismiss (#108)
The defendant Frank does not dispute that she was timely served with the writ, summons and complaint dated November 4, 2008, bearing a return date of December 16, 2008, and that the writ, summons and complaint were timely filed with the court, pursuant to the relevant statutes. Indeed, Frank filed an appearance by way of legal counsel on or about December 15, 2008 and did not file any motion to dismiss contesting personal jurisdiction within thirty days of said appearance. See Practice Book §§ 10-30 and 10-32.
Sec. 10-30. Motion to Dismiss reads in relevant part as follows:
Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . .
Sec. 10-32. Reads in relevant part as follows:
Any claim of lack of jurisdiction over the person . . . or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.
Frank's argument is the court lacks subject matter jurisdiction because the plaintiffs amended the return date to March 31, 2009 for service on Rellosa. By doing this Frank argues the plaintiffs have, in fact, amended the return date for all defendants and abandoned the original return date. The effect of this amendment means the new return date of March 31, 2009 is more than two months after the original return of process, which was November 4, 2008. Frank argues that "all process," thus, has not been made returnable not later than two months after the original "date of process" as required by § 52-48(b).
The court disagrees that it lacks subject matter jurisdiction. "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; emphasis added; internal quotation marks omitted.) Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 771 (2004); Connor v. Statewide Grievance Committee, 260 Conn. 435, 442-43, 797 A.2d 1081 (2002). Our Supreme Court has stated that its precedents "make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction." Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989). "The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it." (Citations omitted.) Id., 180.
The defendant Frank only challenges the amended return date. Therefore she is questioning the lack of personal jurisdiction, not the court's subject matter jurisdiction. A defect in process, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). By virtue of her general appearance and failure to file a motion to dismiss within thirty days challenging personal jurisdiction, she has waived any challenge to a lack of personal jurisdiction as to her. Accordingly, her motion to dismiss for a lack of subject matter jurisdiction is denied.
III Rellosa's Motion to Dismiss (#117)
The defendant Rellosa was served by the state marshal on February 21, 2009 with a copy the writ, summons and complaint dated February 18, 2009, bearing the amended return date of March 31, 2009. That process was returned to court on March 4, 2009. Rellosa filed her appearance on March 31, 2009, and thereafter, she filed the subject motion to dismiss. In her motion she claims the plaintiffs' action violated General Statutes § 52-48(b) as the action was returnable more than two months after the original date of process of the writ, summons and complaint. Rellosa argues the court lacks subject matter jurisdiction. For reasons stated in the preceding section as to the motion to dismiss filed by the defendant Frank, the court finds that it has subject matter jurisdiction.
Rellosa's motion to dismiss was filed on April 30, 2009, within thirty days of the filing her appearance on March 31, 2009. However, her motion to dismiss only claims that the court lacks subject matter jurisdiction. Rellosa did not file any motion to dismiss claiming a lack of personal jurisdiction within the thirty-day time period. Thus, she has waived any claim of a lack of personal jurisdiction
"[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bowen v. Seery, 99 Conn.App. 635, 637-38, 915 A.2d 335 (2007); Bridgeport v. Debek, supra, 210 Conn. 179-80. A defect in process, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 541 "[A] challenge to a court's personal jurisdiction . . . is waived if not raised by a motion to dismiss within thirty days [after the filing of an appearance]." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004). Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) "[T]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999); see Practice Book § 10-32. Accordingly, Rellosa's motion to dismiss for a lack of subject matter jurisdiction is hereby denied.
ORDERS
The Motion to Dismiss (#108), filed by the defendant Frank, and the Motion to Dismiss (#117), filed by the defendant Rellosa, are both denied for the reasons set forth, herein.